LEGISLATIVE ACTION ITEM
SPONSOR: City Council Member Sherri Myers
SUBJECT:
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LEGAL OPINION - REQUEST FOR A LEGAL OPINION FROM THE CITY ATTORNEY REGARDING THE CHARTER AMENDMENT PROCESS
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RECOMMENDATION:
recommendation
That the City Council request a legal opinion from the City Attorney seeking to determine if the second sentence in the Charter for the City of Pensacola (“Charter”) Section 8.02.(b) Initiation by Petition that reads - "Each petition proposing amendments to this Charter shall be commenced in the same manner as an ordinance proposed by initiative in Article VII of this Charter." - is preempted by Section 166.031 Charter Amendments, Florida Statutes.
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HEARING REQUIRED: No Hearing Required
SUMMARY:
The first sentence of the Florida Constitution's Article VIII Local Government, Section 2 Municipalities provides that, "Municipalities may be established or abolished and their charters amended pursuant to general or special law." General and special laws are adopted by the Florida Legislature not by municipalities. The plain language meaning of the above quoted sentence appears to clearly provide that Florida voters have authorized the Florida Legislature to occupy the entire field of regulating the municipal charter amendment process.
Municipalities do not appear to have the authority to prohibit what the Florida Legislature has authorized with respect to the municipal charter amendment process. Several local examples further support this view: 1) the Charter for the City of Gulf Breeze's Section 12 Amendment to charter provides, "This section had been editorially deleted as superseded by F.S. §166.031."; 2) the Charter for the City of Fort Walton Beach does not mention the charter amendment process; and 3) the Charter for the City of Crestview provides, “The electors of the city may propose amendments to this Charter in accordance with the provisions of F.S. §166.031.”
If given legal effect, the second sentence in the Charter's Section 8.02.(b) would require that charter amendments in the City of Pensacola must only be proposed using the same “manner” as the Charter prescribes for electors to propose “ordinances.” Section 8.02.(c) Consistency provides - "Except as additionally provided for herein, the method for charter amendments shall be consistent with State law." The very unusual wording of Section 8.02.(c) appears to suggest that the intent of the City Council when it approved the Charter’s proposed language in 2009 was that the charter amendment process was intended to be “inconsistent” with state law.
In AGO 88-30 Amendments and Conflicting Provisions in Charter, Attorney General Robert Butterworth addressed how F.S. §166.031 adopted by the Florida Legislature in 1973, and as amended from time to time, governs the charter amendment process - "A legislative directive as to how a thing shall be done, is in effect, a prohibition against it being done in any other way. This office has previously concluded that any charter provision adopted or readopted subsequent to the effective date of the Municipal Home Rule Powers Act, Ch. 166, F.S., can only be amended in accordance with the provisions of s. 166.031, F.S." The second sentence in the Charter’s Section 8.02.(b) appears to be in direct conflict with state law in at least three ways:
1. Would create three charter amendment subject matter limitations only in the City of Pensacola. The Charter’s Section 7.02. Power of Initiative with respect to voter proposal of “ordinances,” and that would apply also to the charter amendment process if the second sentence in Section 8.02.(b) were given legal effect, provides in part, “The electors are not empowered to propose ordinances that extend to providing an annual budget, levying taxes, or setting salaries of City officers or employees.” In AGO 2002-79 Citizens' Initiatives to Amend Charter and Ordinances, Attorney General Richard Dornan advised, "I am of the opinion that a municipal charter may not limit the electors' authority to propose amendments to the charter to certain subjects." Attorney General Doran summarized, “A municipal charter may not conflict with the provisions of section 166.031, Florida Statutes, which guarantees to electors of a municipality the right to petition the municipality to amend any part or all of the municipal charter with the exception of that part describing the municipality’s boundaries.” The Florida Municipal Officials' Manual prepared by the Florida League of Cities advises about F.S. §166.031 and its application, "All parts of a charter may be amended except that part defining the boundaries of the city."
2. Would limit to 60 days the validity of charter amendment petition signatures only in the City of Pensacola. The Charter’s Section 7.05.(d) limits the validity of a voter proposed ordinance or referendum petition signatures to 60 days from “the commencement date of the initiative or referendum proceedings.” If given legal effect, Section 8.02.(b) would also apply the charter’s voter-approved 60-day ordinance proposal petition signature limitation to all charter amendment petition signatures too. In AGO 98-27 Municipal Charter Amendment, Petition Signatures, Attorney General Butterworth advised, "I am of the opinion that, until this matter is legislatively or judicially clarified, it is reasonable to conclude that the signatures on a petition to amend a municipal charter pursuant to section 166.031, would be valid for a period of two years."
3. Would require that “ten (10) electors” must propose a charter amendment only in the City of Pensacola. During the Florida League of Cities' Annual Conference in 2018, Mr. Harry Morrison, Jr., Of Counsel, emphasized during a Home Rule History Workshop - "A municipality's charter is like the state's constitution. It's the paramount governing instrument of the municipality and is the fundamental law of the citizens that are served by the municipality." In Florida, individual voters have a right to propose constitutional amendments. If the second sentence of Section 8.02.(b) were given legal effect, Section 7.04. Commencement of Proceedings that governs the process for city electors to propose ordinances would govern the charter amendment process. Section 7.04 requires that "ten (10) electors" must propose an ordinance. Nothing in F.S. §166.031 appears to require that exactly “ten (10) electors” must always propose a charter amendment.
PRIOR ACTION:
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FUNDING:
N/A
FINANCIAL IMPACT:
None
STAFF CONTACT:
Don Kraher, Council Executive
ATTACHMENTS:
None
PRESENTATION: No